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Court of Appeal, Third District, California.

MCDERMOTT RANCH, LLC, Plaintiff and Appellant, v. CONNOLLY RANCH, INC., Defendant and Respondent.


Decided: December 17, 2019

Mayol & Barringer, Bart Barringer, Modesto; McCormick, Barstow, Sheppard, Wayte & Curruth LLP and Todd W. Baxter, Fresno, for Plaintiff and Appellant. Law Offices of Tony J. Tanke and Tony J. Tanke, for Defendant and Respondent.

This case stems from a 1958 real estate transaction between the predecessors in interest to plaintiff McDermott Ranch, LLC (McDermott), and the predecessors in interest to defendant Connolly Ranch, Inc. (Connolly). The parties owned adjoining ranches in an area called section 10 (Section 10) in rural San Joaquin County.1 Under the 1958 transaction, McDermott's predecessors in interest received the entirety of Section 10, except for a carved out parcel in the western portion that went to Connolly's predecessors in interest (hereinafter referred to as the McDermott parcel and the Connolly parcel, respectively). The parties’ lands were separated on the northern and eastern sides by Carnegie Ridge, with a fence marking the boundary.

A dispute arose between the parties concerning the location of the southern and western borders of the Connolly parcel. According to Connolly, its parcel is approximately 165 acres with a border that ends at the Section 10 western and southern boundaries. McDermott, in contrast, argues the Connolly parcel is approximately 107 acres and only extends to a fence that runs along the western and southern portion of Section 10, plus a portion (the 24-acre Connolly defect) that connects the southeastern portion of the Connolly parcel to other land owned by Connolly in the adjacent section 15. In September 2013, McDermott sued to quiet title to the disputed portions of Section 10 and to eject Connolly; Connolly cross-complained for the same relief.

After a bench trial in July 2016, the trial court awarded Connolly the disputed 58 acres under the agreed boundary doctrine, in part based on testimony from Mark Connolly (Mark) regarding statements made by his father Robert Connolly (Robert) about the background and intent of the parties in doing the 1958 transaction. Robert had negotiated the deal on behalf of his mother Ann Connolly (Ann), who was a predecessor in interest to Connolly.

On appeal, McDermott contends the trial court erred in admitting the testimony regarding Robert's hearsay statements under Evidence Code section 1323.2 He further argues that the remaining evidence is insufficient to support the trial court's judgment because the deed and related documents reflect the parties’ intent to grant Connolly the smaller parcel. Finally, McDermott asserts that the trial court abused its discretion in awarding attorney's fees after finding that McDermott had unjustifiably failed to admit certain requests for admission. We will affirm.


1. The 1958 transaction

Prior to the 1958 transaction, McDermott's predecessors in interest owned approximately 75 percent of Section 10 (about 480 acres), while Connolly's predecessors in interest owned approximately 25 percent (about 160 acres). The parcel owned by Connolly's predecessors in interest was on Section 10’s southern border, roughly in the middle of the southern half of the section. Connolly's predecessors in interest also owned sections 9, 15, and 16, which bordered Section 10 to the west, south, and southwest.

In 1958, the parties exchanged land within Section 10. Ann granted to Thomas McDermott “[t]he East one-half of the Southwest Quarter and the West one-half of the Southeast Quarter of Section 10,” except for “any portion of the 107.27 acre parcel of land lying within the above described premises.” The grant deed provided a detailed description of the excepted 107.27 acres as “[b]eginning at a point on the West line of Section 10.” The description included portions “along the South line of Section 10 to the Southwest corner of Section 10,” and then turned north “along the West line of Section 10 to the point of beginning, containing 107.27 acres, more or less.” Thomas executed a corresponding grant deed granting Ann the excluded parcel.

The civil engineering firm R.W. Siegfried and Associates prepared a property description and a sketch of the Connolly parcel. The sketch (referred to as the Siegfried drawing) included markings for the fence lines on the southern and western borders of the Connolly parcel, noting “Fence on Section Line.” In an accompanying letter (referred to as the Siegfried letter), the firm representative described the parcel as the “portion of Section 10 lying southerly and westerly of Carnegie Ridge. The description follows our traverse line along Carnegie Ridge and along the fence lines on the south and west sides of the parcel. The above fence lines are assumed to be the south and west Section lines of Section 10 respectively.”

2. The 1983 litigation, 2009 survey, and instant litigation

In 1983, the Connollys filed suit against the McDermotts seeking to quiet title to an easement that passed through McDermott's portion of Section 10. The trial court in the 1983 action ultimately denied the Connollys’ claim. Mark, who represented Connolly and Ann's estate in the 1983 litigation, testified at trial that there was no dispute about the 1958 transaction in 1983. Mark did not recall whether he had an interest in Connolly at the time of the 1983 litigation. There was a drawing prepared for the 1983 litigation stating that the Connolly parcel in Section 10 was 107 acres; Mark testified at trial that the diagram had nothing to do with the issues disputed in the current action.

In 2009, the fence on the western side of Section 10 was damaged in a fire. McDermott hired Jon Lamb to survey the area so that the fence could be rebuilt on the section line. After Lamb discovered that the fence was not originally built on the section lines, he was hired to establish the boundaries of Section 10. Lamb was not aware of any survey of Section 10 prior to 2009. Lamb testified at trial that before his survey, the only other way to determine the boundaries of Section 10 would have been to refer to the United States Geological Survey (USGS) quad sheets. However, the USGS maps would not show the acreage.

In 2013, McDermott filed suit to quiet title to the portions of Section 10 that it argued were deeded to it. McDermott also claimed ejectment and damages, declaratory relief, breach of implied contract and unjust enrichment, and trespass. Connolly cross-complained, seeking to quiet title to the disputed portions of Section 10 and for declaratory relief. Connolly also sought attorney's fees. In July 2015, the trial court granted Connolly's motion for summary judgment as to McDermott's claims of breach of implied contract/unjust enrichment and trespass.

3. Trial testimony from Jon Lamb and Mark Connolly

Lamb testified at trial that in his opinion the parties’ intent in 1958 was to “grant the property to the south and west of Carnegie Ridge and bounded on the west by the west line of Section 10 and on the south by the south line of Section 10.” Lamb based his opinion on observing the site and noting that the “intent was to provide the ability to build a road down the top of the ridge and to separate the property to the south and west of that incorporated in with the Connolly Ranch.” Lamb noted that there was a road on the ridge that was very close to the ridge fence line and followed the jagged northern and western border shown in the Siegfried drawing. Lamb did not think the parties intended in 1958 to create a landlocked parcel or a gap between the Connolly parcel in Section 10 and the other adjacent lands owned by Connolly.

With respect to the 24-acre Connolly defect running along part of the southern border of Section 10, Lamb testified that the boundaries were drawn based on the fence and the road running down Carnegie Ridge. However, the Connolly defect was not reflected in the legal description. In addition, the parties in 1958 did not intend to create a gap between the McDermott property in the southern portion of Section 10.

Still, Lamb understood the 1958 transaction to grant only 107.27 acres to Connolly's predecessors in interest. Lamb testified that the property description and Siegfried drawing reflected that the Connolly parcel only included 107.27 acres and did not extend to the western or southern section boundary lines. In addition, the tax assessor's map of Section 10 states that the Connolly parcel is 107 acres. Lamb acknowledged that the tax assessor's map was not intended to be an actual survey reflecting the actual acreage owned in a particular section. Lamb testified that with respect to legal descriptions of real property, intent was the most important factor, then the words, and then the area.

Lamb calculated that if the Connolly parcel were to include the disputed lands and run to the southern and western border, it would amount to 165 acres. Such a figure was “beyond what you would expect” as a “plus or minus” from the deed's description of the Connolly parcel as “containing 107.27 acres, more or less.” In sum, Lamb found nothing in the deed, Siegfried letter, or Siegfried drawing that led him to believe the parties intended to deed 165 acres to Connolly's predecessors in interest.

Lamb testified that it was possible for the Connolly parcel to remain at 107 acres and still extend to the western and southern Section 10 borders, by “shov[ing]” it into the southwest corner of the section. Lamb acknowledged this would move the parcel border away from the existing fences, ridge, and road.

Lamb further testified that the surveyor in 1958 would have realized that the southern and western fences were not on the USGS section boundaries. The southern fence/boundary line as shown in the Siegfried drawing was seven degrees from where it should have been if it were on the USGS boundary. This deviation was “very significant.” In addition, the western boundary line in the Siegfried drawing was about 657 feet short of the standard section boundary length, a “sizeable difference.”

During trial, Mark testified that the description in the 1958 grant deed was “internally inconsistent” and “an impossibility.” Although the deed stated the Connolly parcel was within the USGS boundaries (and not the fence lines), the description “accurately located” the parcel on the fences running along the southern and western edges of the parcel. Mark further testified that the parties “would have known” in 1958 that the fences on the western and southern edges of the Connolly parcel did not run absolutely to the USGS boundaries because they were not straight. In Mark's opinion, the deed description reflected the surveyor's use of the fence lines as the best evidence of the USGS boundaries.

Mark testified that if McDermott was given everything that was not within the Siegfried drawing and description, the Connolly parcel would be landlocked with narrow strips owned by McDermott extending all the way around. Such a result would “defeat[ ] the purpose of the 1958 exchange.”

4. Mark Connolly's testimony at trial regarding Robert Connolly's statements

Mark also testified that his father, Robert, worked on the family ranch from the end of World War II until his death in 1991. Robert negotiated the 1958 transaction on Mark's mother, Ann's, behalf. Starting when Mark was approximately eight years old, he and Robert would often talk about the ranch and the 1958 transaction. Mark was one year old at the time of the 1958 transaction.

Robert told Mark that there had “always [been] problems with the McDermotts.” The McDermotts poached, hunted, and grazed their animals without permission on Connolly lands. Both parties also used a road that ran along Carnegie Ridge to the southern border of Section 10; the road was partly on McDermott's lands and partly on Connolly's. In addition, the Connolly family was unable to use its land in Section 10 for grazing because there was no fence separating its land from McDermott land.

Robert told Mark that by 1958 he had grown frustrated. The parties considered putting up a fence or having the McDermotts pay rent, but ultimately settled on a land swap. Robert said his “objective” was to “create a defensible position from this trespass and hunting problem that he was having.” The parties agreed the McDermotts would get the Connolly family's existing lands in Section 10 and Connolly's predecessors in interest would get “everything to the south and west” of a fence that would run along the top of Carnegie Ridge. There would be enough room on Carnegie Ridge for each party to build a road on its own side, thereby preventing roadway access to the other's property along Carnegie Ridge. Mark testified that after the transaction, “anybody who crossed the fence, other than in a fire or some kind of an emergency, was going to be arrested or turned around.” Mark currently used the road to access his home.

Robert told Mark that the parties intended that the deal be “based on the fence lines.” Although the parties knew that the fence lines were not “exactly” on the USGS boundaries, they wished to avoid the expense of surveying the entire 160 acres of the proposed Connolly parcel. Instead, they chose to survey using the ridge and existing fence lines as “being close enough” for their purposes. Robert was unaware of any survey that was done before the exchange.

According to Mark, Robert also said the parties intended to make the exchanges of acres “close to even,” so as to avoid paying any funds. Robert never told Mark that any funds were paid. Robert also “never provided an acreage figure” with respect to the swap. Even though the deed did not refer to the fence lines, the coordinates in the description match the location of the fence.

McDermott objected to Mark's testimony regarding Robert's statements as hearsay. McDermott argued Mark was not trustworthy. Connolly argued the testimony was admissible pursuant to sections 1323 and 1250. The trial court found the testimony admissible as an exception to the hearsay rule pursuant to section 1323. The trial court noted that Robert had personal knowledge of the 1958 transaction because he negotiated the exchange. Robert was deceased and therefore unavailable. In addition, there was “no credible evidence” that Robert's statements were untrustworthy. Robert's statements to Mark were made before the 1983 litigation, which “dealt with a different issue.” The trial court reasoned that even if the two had discussed the 1958 transaction again during the 1983 lawsuit, the issue of who owned the now disputed lands did not arise until 2009. Robert's statements were simply “his view as to why the exchange of the property was made,” and they “coordinate well with the other testimony.”

5. Judgment

In October 2016, the trial court found against McDermott on its claims and in favor of Connolly on the claims in its cross-complaint. Relying on Lamb's testimony, the trial court held that the “mutual intent of the parties in 1958 was to give to [Connolly's predecessors in interest] all the property to the west and south of the existing fence lines” on the southern and western edges of the Connolly parcel. Lamb also testified that the parties in 1958 did not intend to create a gap between the McDermott property on the south side of Section 10 by granting Connolly the Connolly defect. In addition, the parties “ ‘assumed’ ” the existing fence lines to be on the USGS boundaries. The Siegfried drawing also stated twice “ ‘Fence on Section Line,’ ” indicating that the parties intended the Connolly parcel to “be at the intersection of Sections 9, 10, 15, and 16.”

The trial court reasoned that Robert similarly told Mark that the parties’ intent in 1958 was for the McDermotts to “give up everything to the south and west of the fence” along Carnegie Ridge. The effect of the deal was to give a “ ‘defensible position’ ” to Connolly's predecessors in interest from any trespass or hunting, and exclusive access to a roadway. Mark also testified that he understood the 1958 transaction to have given Connolly's predecessors in interest the 107.27 acres as described on the map, plus the “50 plus acres” to the west and the south of the existing fence lines.

In addition, reasoned the trial court, Connolly and its predecessors in interest have had, since 1958, “exclusive possession, occupancy and control of all property west and south of the fence line [along Carnegie Ridge] and have excluded [McDermott and its] predecessors in interest from said property.” Since the 1958 transaction, neither McDermott nor its predecessors had ever occupied or possessed the disputed lands.

The trial court further found that the parties’ payment of property taxes did not create an implied contract whereby Connolly would only receive 107.27 acres because the tax parcels were not the same as property subdivisions or boundary lines. In addition, nothing from the 1983 lawsuit suggested McDermott was entitled to “any property to the south of the fence line,” because the parties in 1983 did not distinguish between the fence lines and the section lines.

The trial court denied McDermott's claim for ejectment because McDermott had failed to “prove by a preponderance of the evidence that it possessed the lands at the time of the entry of [Connolly and its predecessors in interest].”

With respect to Connolly's counterclaims seeking to “correct the deeds to match the 1958 Agreed Boundary fence,” the trial court found that Connolly had established the elements of the agreed boundary doctrine. There was “an uncertainty as to the location of the true boundary when the fence was erected, ․ an agreement between the neighboring property owners to employ the location of the fence as the means of establishing the boundary, and ․ the acceptance and acquiescence in the line so fixed was made under such circumstances that substantial loss would be caused by a change of its position.” From 1958 to the present, Connolly and its predecessors in interest have had “exclusive possession, occupancy and control of all property West and South of the fence line.”

The trial court continued: “Through the weight given to the testimony of Mark Connolly, this court finds that the parties agreed to fix the boundaries between the property on the West and South as the barbed wire fence that had historically been recognized as the boundary.” The circumstantial evidence “outweigh[ed]” the property description in the deeds because the descriptions were “based on information unknown and unknowable at the time of the transfer.” Moreover, Lamb testified that the parties’ intent during the 1958 transaction was the “most important factor.”

6. Order granting Connolly attorney's fees

In November 2016, Connolly moved for attorney's fees pursuant to Code of Civil Procedure section 2033.420 on the grounds that McDermott failed to admit the truth of certain facts when requested to do so and Connolly later proved the truth of those facts at trial. Connolly identified 22 requests for admission (hereafter RFA's or requests) in its motion. After a hearing, the trial court awarded cost of proof fees as to 13 requests, for a total amount of $31,637.46.



McDermott contends the trial court erred in finding the evidence of Robert's statements trustworthy and admissible under section 1323, which provides: “Evidence of a statement concerning the boundary of land is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and had sufficient knowledge of the subject, but evidence of a statement is not admissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.” (§ 1323.) According to McDermott, the statements also were not admissible under sections 1251, 356, or 1241. McDermott further argues that admission of the statements was prejudicial because it is reasonably probable that the result would have been different given the remaining evidence.

Even though the text of section 1323 only requires the court to consider the statement's “trustworthiness,” McDermott argues the trial court was required to exclude the evidence because Robert had an interest in the disputed land at the time he made his statements. As the parties acknowledge in their briefs, there is no published authority interpreting section 1323 or its trustworthiness requirement.

1. Standard of review

We review a trial court's decision to admit evidence for abuse of discretion. (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446-447, 205 Cal.Rptr.3d 858.) Here, the trial court's decision to admit the evidence was based on its understanding that it could admit Robert's statements under section 1323 if there were indicia of trustworthiness, and that a declarant's interest in the disputed boundary does not automatically make the statement inadmissible. The proper interpretation of a statute is a question of law and subject to de novo review. (See, e.g., Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799-800, 35 Cal.Rptr.2d 418, 883 P.2d 960.)

2. Analysis

The fundamental task of statutory construction is to “ ‘ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’ ” (Allen v. Sully-Miller Contracting Co. (2002) 28 Cal.4th 222, 227, 120 Cal.Rptr.2d 795, 47 P.3d 639.) In doing so, courts should look first to the statutory language, “because it generally is the most reliable indicator of legislative intent.” (Ibid.) Where the intent is clear from the language itself, the court will not look beyond the plain meaning; “ ‘the Legislature is presumed to have meant what it said, and the plain meaning of the statute governs.’ ” (Stephens v. County of Tulare (2006) 38 Cal.4th 793, 802, 43 Cal.Rptr.3d 302, 134 P.3d 288.)

We turn to the text of section 1323 to apply the foregoing principles. “Trustworthy” means “worthy of confidence” and “dependable.” (Merriam-Webster's Collegiate Dict. (11th ed. 2006) p. 1344, col. 2.) “Trustworthiness” is defined as the “ability to be relied on as honest or truthful.” (Oxford Univ. Press [as of Dec. 17, 2019], archived at .) Rather than trying to define all the circumstances under which evidence may be admitted under section 1323, the statute instead vests trial courts with broad discretion to evaluate the entire record in a given case to determine whether “the statement was made under circumstances such as to indicate its lack of trustworthiness,” including a declarant's potential interest in a disputed border and any motive to lie. Had the Legislature's intent been to make statements automatically inadmissible if the declarant had an interest in the disputed boundary, it could have said so. (Cf. § 1370 [identifying a nonexhaustive list of factors to consider in evaluating the trustworthiness of otherwise inadmissible statements from an unavailable declarant regarding the infliction or threat of physical injury upon the declarant].) This conclusion is bolstered by courts’ interpretations of similarly worded statutes. For example, a hearsay statement that would otherwise be admissible under the state-of-mind exception (§ 1250, subd. (a)(1)) is inadmissible if made under circumstances that indicate the statement's lack of trustworthiness (§ 1252). As courts have explained, “[a] statement is trustworthy within the meaning of section 1252 ․ when it is ‘ “made in a natural manner, and not under circumstances of suspicion” ’ ” (People v. Harris (2013) 57 Cal.4th 804, 844, 161 Cal.Rptr.3d 364, 306 P.3d 1195.)

Here, the trial court carefully evaluated all the evidence before it, including the evidence of Robert's (and Mark's) stake in the outcome of the dispute, and was persuaded by the fact that Robert's statements were made well before any boundary dispute arose. In addition, Robert's statements were simply “his view as to why the exchange of the property was made,” and “coordinate[d] well with the other testimony.” Further, the statements were made in a “natural manner,” i.e., in conversations about the history of the property between father and son at a time when no boundary dispute existed.

McDermott argues that a statement is inadmissible under section 1323 if the declarant has an interest in the disputed land, citing the 1965 Law Revision Commission comments to the statute, which note that the section “codifies existing law found in such cases as Morton v. Folger [(1860) 15 Cal. 275], and Morcom v. Baiersky [(1911) 16 Cal.App. 480[117 P. 560]].” (Recommendation: Proposing an Evidence Code (Jan. 1965) 7 Cal. Law Revision Com. Rep. (1965) p. 262.) As the comments suggest, however, Morton and Morcom were published long before section 1323 came into effect in 1967. More importantly, neither case addresses the issue raised by McDermott, i.e., whether a declarant's interest in land mandates automatic exclusion. “It is axiomatic that cases are not authority for propositions that are not considered. [Citations.]” (California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1043, 232 Cal.Rptr.3d 64, 416 P.3d 53.)

In Morton, for instance, the court considered whether the deposition of a deceased surveyor was admissible as hearsay evidence of the location of land boundaries when the deposition had been taken in a different action between the parties. (Morton v. Folger, supra, 15 Cal. at pp. 277-279.) Noting that such evidence had long been admissible in England and other American states, the court held that “the declarations on a question of boundary of a deceased person, who was in a situation to be acquainted with the matter, and who was at the time free from any interest therein, are admissible.” (Id. at p. 280; see also Cornwall v. Culver (1860) 16 Cal. 423, 428 [reaffirming holding of Morton]). At best, Morton stands for the proposition that an interest in property might be one factor to consider under the statute. And here, the trial court evaluated the overall trustworthiness of Robert and Mark Connolly's statements, including evidence of their interest in the property.

Similarly, in Morcom, the court held that the trial court properly admitted a map prepared by a surveyor in 1870 that tended to corroborate the testimony of witnesses at trial regarding the location of a city boundary line. (Morcom v. Baiersky, supra, 16 Cal.App. at pp. 482-483, 117 P. 560.) During trial, the map was “identif[ied]” by a different surveyor who had checked a large part of the map by actual surveys and was “quite positive that [the map] was correctly made.” (Id. at pp. 482, 483, 117 P. 560.) The surveyor also testified that the map had been used as a reference map by surveyors for “a good many years.” (Id. at p. 483, 117 P. 560.) The court stated in dictum that if the record had established that the original surveyor was deceased at the time of trial, there would have been “ample ground” to admit the map pursuant to the rule set out in Morton. (Morcom v. Baiersky, supra, at p. 483, 117 P. 560.) This case also does not establish a per se rule against admission of statements made by declarants with an interest in the subject land.

In sum, based upon the text of section 1323, we conclude the trial court did not abuse its discretion in finding the evidence of Robert's statements trustworthy and admissible. Accordingly, we need not reach McDermott's argument that the evidence was inadmissible under other hearsay exceptions, or that its admission was prejudicial.



The judgment is affirmed. Connolly is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)


1.   “The Public Land Survey System (PLSS) is a way of subdividing and describing land in the United States. All lands in the public domain are subject to subdivision by this rectangular system of surveys, which is regulated by the U.S. Department of the Interior, Bureau of Land Management (BLM). [¶] ․ [¶] The PLSS typically divides land into 6-mile-square townships, which is the level of information included in the National Atlas. Townships are subdivided into 36 one-mile-square sections. Sections can be further subdivided into quarter sections, quarter-quarter sections, or irregular government lots․” ( [as of Dec. 13, 2019], archived at .)

2.   Undesignated statutory references are to the Evidence Code.


Duarte, Acting P. J., and Renner, J., concurred.

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Docket No: C085433

Decided: December 17, 2019

Court: Court of Appeal, Third District, California.

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